The author is a Forbes contributor. The opinions expressed are those of the writer.

Loading ...

Loading ...

This story appears in the {{article.article.magazine.pretty_date}} issue of {{article.article.magazine.pubName}}. Subscribe

It's being reported that the Department of Justice is arguing, in its ongoing attempts to deal with Megaupload, something that I regard as very dangerous indeed. Something that strikes at the heart of the developing Common Law consensus on, would you believe this, child pornography.

In a filing that the EFF says should “terrify” users of any cloud service, the government is arguing that Goodwin’s property rights aren’t sufficient to demand access to the servers.

The government arguments are that Goodwin cannot demonstrate any “ownership” over the servers, since he merely paid for a service. Moreover, while conceding that Goodwin might have the right to assert his copyright, that is “not sufficient to establish that he has an ownership interest in the property that is the subject of his motion – the copies of his data, if any, which remain on Carpathia’s servers”.

Or as The Register interprets it:

Content owners would hardly welcome a determination that the existence of a copy of data isn’t necessarily sufficient to establish ownership rights over that data.

And now to hare off in an entirely different direction. Let us consider child pornography. Leave aside the silliness that has seen fathers being prosecuted for having a picture of their darlin' babby having a bath. Let us instead consider how "ownership" of such pornography is determined. The first thing to note is that in the Common Law jurisdictions (largely, but not exclusively, the English speaking world) possession of such vileness is a strict liability offense. How it got onto your computer doesn't matter. Inadvertently downloading it makes no difference. It is there, on your computer, you possess child pornography thus you're nicked sunshine. Welcome to that special segregated area of the prison where you might just survive not being killed by outraged, honest and upright murderers and thieves.

In fact, the law goes rather further. A downloaded piece of such pornography is taken as being the production of it, not just the possession of it. For before the download there was one piece of it, on the server. After the download there are two pieces, one on the server the other in a hard drive or cache. If there are now two pieces someone must have produced one of them: you'll not be surprised to learn that sentences for production are higher than for possession. There's not anything very surprising about this little corner of the law either. The same logic is applied to the publication of libel: it's where it's read, not where it's originally prepared that determines jurisdiction.

So these are reasonably well established principles of the law. But DoJ is trying to drive a horse and cart through this very idea. If existence of a file (or picture, movie, book) isn't enough to prove ownership then it rather puts a spanner in this area of the law concerning pornography.

My own, purely personal, opinion is that DoJ is beginning to realise that it's messed up the entire Kim Dotcom / Megaupload prosecution. As a consequence it's rather thrashing around trying to uphold whatever it can, whatever that does to the rest of the law be d'mned.